CBP (U.S. Customs and Border Protection) is now frequently searching the cell phones and laptops of travelers trying to enter the U.S. While they previously had a practice of doing this, it has become more frequent and routine. Thus, should there be any doubt about your admissibility to the U.S. , you need to be prepared in case CBP searches your electronic devices, or even confiscates them and sends them for forensic examination. CBP does not even have to provide any reason to search your cell phone or laptop.
In general, the Fourth Amendment to the U.S. Constitution protects us from unreasonable searches and seizures of our “persons, houses, papers, and effects”, unless the police have probable cause to believe a crime has been committed and have gone to a judge to get a search warrant. In the Supreme Court case of Riley v. Calfornia, 573 U.S. __ (2014), the petitioner Riley had initially been stopped for a traffic violation, and the arresting officer searched him and seized his cell phone, which was later examined in detail by a detective at the police station. Because of information found on the cell phone, Riley ended up being charged in connection with a shooting and the prosecutor asked for an enhanced sentence because of his gang membership. Riley made a motion to suppress all evidence seized from the cell phone and appealed.
The U.S. Supreme Court noted that cell phones have an immense storage capacity, and that most people have every aspect of their personal lives stored on their phone, all their private interests and concerns, their family, years of personal photos, any health problems they have, their banking, their business and where they have been. The government’s search of a person’s cell phone would reveal far more than the most exhaustive search of his home. In this situation, the Supreme Court found that the person’s right to privacy was greater than the government’s interests at stake.
In Riley, the Supreme Court held that a warrant is required to search a cell phone, even when the cell phone was seized incident to an arrest.
However, this does not apply to searches at the border, including land borders and international airports. Your right to privacy evaporates at the border. There is a long-standing border search exception, so that there is no requirement of a warrant or probable cause for searches at international borders. The US Supreme Court has held that the right of U.S. government agents to stop and search travelers at the border does not implicate the Fourth Amendment, U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985). The U.S. government’s interest in protecting our borders and in national security outweighs any privacy interest of the individual.
In August 2009, U.S. Immigration and Customs Enforcement (ICE) and CBP issued directives allowing their agents to inspect any electronic device that travelers seek to carry across an international border into the U.S. CBP and ICE also allow their agents to detain electronic devices in order to search them, and to copy the files. CBP and ICE may do this, even if they have no reasonable suspicion of any wrongdoing, or of any issues within their own jurisdiction. If the information is encrypted or in a foreign language, CBP may take the device from the traveler and send it for forensic examination to another agency.
Pascal Abidor was a graduate student at the Institute of Islamic Studies at McGill University in Montreal, who was writing his dissertation on the modern history of Shia’s in Lebanon. In 2010, he was traveling on an Amtrak train from Canada to the US, when the train was stopped at a CBP inspection point near Service Port- Champlain. While being questioned by the CBP officer, Abidor revealed that he had traveled to Lebanon and Jordan, and showed the agent his visas. Abidor was then taken for further inspection, and his laptop, digital camera, two cell phones and an external hard drive were all seized by CBP. The officer ordered him to put his password in to log in to his computer, which he did. The officer found photos of rallies of Hezbollah and Hamas, which Abidor explained were taken as part of his research for his PhD. His laptop and external drive were taken by CBP and not returned until 11 days later, after sending them for forensic examination and making a copy of all the files. In addition to his research for the PhD, the computer files contained all his personal information, including communications with his girlfriend, personal photos and tax returns, among other information. Abidor was never found to have committed any kind of wrongdoing.
Abidor, along with others, sued the U.S. government. The federal court dismissed their claims of violations of the First and Fourth Amendments, in Pascal Abidor, NACDL, National Press Photographers Assoc v. Napolitano, 10-CV-04059 (EDNY 12/31/2013), finding they had no standing. This is just one example of many cases where individuals have sued the federal government for searches at the border and lost.
Thus, if you are traveling internationally to the U.S. and anticipate any possibility of any difficulty at all with CBP, you may best leave your electronic devices at home, or else entertain the real possibility that they will be thoroughly searched and copied by federal agents.